How Do Wills Work?

By April Kohl

Wills have existed in some form for centuries. Their purpose is to distribute the possessions of the deceased in the way they directed, but without some form of legal backing this relies on the good faith of the people left behind. As a result, the way wills work has become subject to a stringent set of legal rules in order to honor the wishes of the will writer.

Wills have existed in some form for centuries. Their purpose is to distribute the possessions of the deceased in the way they directed, but without some form of legal backing this relies on the good faith of the people left behind. As a result, the way wills work has become subject to a stringent set of legal rules in order to honor the wishes of the will writer.

In Brief

The testator (the writer of the will) identifies one or more people as the “executor” in his will. The testator then bequeaths his possessions to one or more beneficiaries. On the testator's death, the executor files the will with the probate court responsible for the area where the deceased lived. The court probates the will, determining its validity according to state law. The executor then distributes the assets of the deceased according to the terms of the will.

The Executor

While in many cases the person named as executor will be appointed to the role by the probate court, some states place limitations on who can serve as executor. For example, a minor or convicted felon will often be barred from serving, as will anyone who is resident in another state unless she is a family member. If the person named as executor is unable or unwilling to serve, the court will appoint an alternate.

Probate Court

The probate court is where a judge determines the validity of the will and hears any objections to it. The court will ensure creditors are paid out of the value of the estate; take a percentage of the estate's value in court fees; and ensure that the executor performs her duties according to the instructions in the will. The court fee varies from state to state and is usually between 3 and 10 percent.

Considerations

Because sometimes a person will be unwilling or unable to serve as executor of a will, it is a good idea to consider nominating alternates. This will allow the court to appoint someone the testator trusts to do the job, rather than a state-appointed attorney or other person who cannot perform the required duties with the same level of familiarity with the estate. Nominating alternates and co-executors is commonplace when drafting wills.

Warning

When a person dies without a will, he is deemed "intestate" and the state he was resident in decides how to distribute his estate. Similarly, if a will is declared invalid and there is no previous, valid will to replace it, the court will act as if the deceased were intestate. It is therefore important to have a valid will according to state law if the estate is to be distributed according to preference.

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